摘要
我國立法政策上既鼓勵企業併購，則公司經營者究能採行何種防禦手段，如何平衡考量相關當事人的利益，展望未來，企業經營權的爭奪及公開收購案件可能日益增多，相關問題應及早立法規範。本文係針對公開發行之股份有限公司作為研究範圍，研究方法係採文獻分析及比較法探討之方式。至於我論文架構的安排上，共分為五章，第一章是緒論，第二章是公開收購介紹，針對公開收購制度作一個介紹，並且作個檢討，第三章是防禦手段，主要是針對美國司法實務上曾出現的種類與分類作一個介紹，並且進一步探討我國法底下適用的可能性。第四章是個案研究，針對國內曾出現敵意併購的個案，精挑幾個特殊防禦手段的個案（併購方式不以公開收購為限）作一介紹，進而一併檢討，第五章是結論，主要是總結前面各章的內容，進一步提出立法上建議。 短期間內取得股權的公開收購制度，逐漸取代委託書之戰，成為取得公司經營權之手段中最常被利用的手段之一。我國現行公開收購規範就公開收購制度下相關解釋未臻明確，對於部分應納入規範的行為亦未在規範範圍內，導致適用上滋生疑義，有待將來立法進一步改進。 我國法之下，可使用防禦手段，除了本文於第三章所介紹美國法之種類外，尚有一些本土化防禦手段，而且有時這種具有濃厚本土味的防禦方式，往往效果比舶來品的防禦手段更好，不過，這也突顯出國內對防禦手段規範密度不足，這些問題都有待將來立法加以改進。 我國企業實務實際使用的防禦手段跟本文第三章所介紹美國實務上的防禦手段有著不小的差距，此是緣於在美國法底下的防禦手段，大多單純依董事會決議即可發動，但在我國法底下，防禦手段的採行往往與股東會決議息息相關，而通常於敵意公開收購之情形下，公開收購人往往都已取得目標公司一定比例的股權，此亦增加目標公司公司派發動防禦手段的難度。本文認為，在未來法制的設計上，更須注重我國國情、民情之特殊性，才能設計出適合規範我國企業實務控制權爭奪的遊戲規則。
並列摘要
With the increase of cases involving the contention for the operation right of enterprises and tender offers in the future, take-over is encouraged by the legislation policy. However, the questions on the countermeasures to be adopted by the operators and the balance of interest between the involving parties shall be regulated by the legislation. This article mainly deals with the company of limited liability with public offering and adopts the method of document analysis and comparative exploration. Regarding the structure of the thesis, it is divided into five chapters. Chapter One is General Survey; Chapter Two is an introduction to the tender offers system, with some comments; Chapter Three is about the Countermeasures, mainly deals with the categories and classification in practice in America, and with an analysis on its feasibility in the legal frame of Taiwan; Chapter Four is the a research on the individual case of hostile takeover home and aboard, where several cases with special countermeasures (the form of take-over is not limited to the tender offers) are selected; Chapter Five is a conclusion of the former chapters and some proposals are made for reference in legislation. The replace of proxy fight by tender offers has become the most frequently used method for acquisition of the company operation right. At present stage, the legal interpretation of the applicable tender offers regulations fail to make clear the behavior norms on tender offers and some behaviors which should be regulated are not in included in the legislation, which has resulted in the problems in practice and left a lot to be improved. The countermeasures available under our legal frame, except for the American ones introduced in Chapter Three, include are some local countermeasures. Sometimes, the local countermeasures are better than the imported ones. However, on the other hand, it shows that the regulations in the domestic legal frame are not adequate. All those questions shall be addressed by the legislation in the future. There is a big gap between the countermeasures used by the domestic enterprises and those used in American, as introduced in Chapter Three. The reason is that, the countermeasures in American legal frame can the initiated with only the resolution of board of directors. However, under the legal frame of our country, the countermeasures are closely related with the shareholders’ meeting. Under the circumstances of hostile tender offers, the public purchaser always has acquired a certain proportion of the shares of the target company; this has caused greater difficulty for the target company to initiate the countermeasures. This thesis holds that, in the design of future legal mechanism, more attention should be laid on the special conditions of our country and our people, to work out a rule of games to regulate the contention of enterprise controlling power in practice in our country.